THE CONSTITUTION UPHELD AND MAINTAINED. 



SPEECH 



'. JAS. HARLAN, 



TJ5TE UNITED STATES SENATE. 



In this country every patriot reverences the Constitution and the laws. Every 
wanton violation of either stirs his indignation. As in Rome the voice of the 
people was said to be the voice of God, so in this country the law is our only 
Foveieiafn which all, from the President to the humblest among the toiling mif- 
lion, mus* implicitly obey. Whoever wantonly tramples the Constitution and 
the laws under his feet, is properly held to be an enemy of the people, and at 
war with their dearest interest. 

Relying on this reveience f®t the law of the latid, the rebels of the South and 
their allies in the North, have sought to justify their treason, and secure a 
diversion in favor of their wicked purposes, by denouncing the President as a 
usurper and tyrant, and his administration as unron»titutional. So persistently 
have they pursued this course, as to convince many honest and patriotic citi- 
zens of its truth. So that many of the President's warmest admirers, and con- 
sistent and ardent friends of the Union, justify these supposed violations of the 
Constitution on the ground of '' military necessity," and the duty of the Presi- 
dent to preserve the Government. Nor will I dispute the potency of this de- 
fense of what would otherwise be the unlawful act of a nation or an individual. 
For the right to self-preservation is the first law of nations as well as of nature. 
This principle underlies every national code, and every system of legal casuistry. 
None are so foolish as to insist that a nation mny not disregard its own laws to 
avoid destruction ; and none except rebels steeped in crime could desire our 
Government to tamely submit to annihilation. 

But having carefully observed the administration of public affairs by Presi- 
dent Lincoln, and as carefully examined the charges of unconstitutionality pre- 
ferred against it, I fearlessly pronounce them groundless. 

Let us examine for a few minutes some of the gravest of those charges. 

CALL FOR MILITIA. 

1. The rebels South and North denounce the first belligereno act of Presi- 
dent Lincoln — his call for some seventy-five thousand militia — as unconstitu- 
tional and tyranieal. 



It* 



And yet the Constitution provides in so many words that Congress shall 
have power 

" To provide for calling forth the militia to execute the laws of th'e Union, suppress 
insurrection, and repel invasion." (Art. 1, Sec. 8.) 

And Congress had, nnder this provision of the Constitution, many years before 
provided by law for the use of the militia by the President, whenever it might 
become necessary for the purposes named. And the necessity had arisen; a 
gigantic insurrection existed ; it had made open and flagrant actual war on the 
Government both by laud and sea. And the President in pursuance of his oath 
to execute the laws, made the call for troops to assist him. 

THE CONSCRIPTION. 

2. Th* Cop2)erheads denounce the President for the "conscription" or "draft™ 
of soldiers to fill up the depleted ranks of our armies. 

And yet none will seriously deny that all able bodied male citizens, owe their 
services to the republic when needed lor its defense, or to aid in the enforcement 
of its laws ; and that if they do not voluntarily spring to arras when the neces- 
sity arises, they may be compelled to serve ; and that without the right to 
coerce the services of its citizens to aid in the common defense, and to enforce 
the laws, all civil government would prove a total failure. Hence sheriffs, and 
constables, and marshalls, in every State in the Union, when resisted in the 
execution of process, are authorized by law to call " by-standcrs," all in their 
reach, for assistance, and it is declared to be a crime to refuse the requisite aid. 
8o it is now, and ever has been, and must ever continue to be when the national 
authorities are resisted by internal or external foes. The proper officers must 
have the right to require the aid of all the people, or abandoo the Government. 
But if the services of all are not needed in any given case, there is no fairer 
mode of nlaking the selection of the requisite number thau by " casting lots," 
whion is but another name for " Draft" or " Conscription." 

And all know that the President did not commence raising troops in this 
mode until Congress enacted h ws requiring it to be done. That Congress had 
the power to enact those laws none can dispute. For the Constitution provides 
that Congress shall have power 

"To raise and support armies." (Const, Art 1, Sec. 8.) 

The power, therefore, is plenary — it is without restriction ; the mode of rais- 
ing them, the material, pay, government, length of service, character, age, color, 
and nationality, are all le'ft to the discretion of Congress. And Congress directed 
that the President should call for volunteers, and if the quotas of the several 
States were not thus filled, he should select the reeidue from the people of the 
delinquent States by lot or draft. Hence, the President, so far from violating 
the Constitution in causing men to be drafted, h?s simply obeyed the law. 
And the law is in accordance with the plainest and most explicit provisions o.' 
the Constitution. 

ARMING NEGROES. 

3. They denounce the President for violating the Constitution in arming 
negroes. 

And yet all know that he did not do so until Congress had enacted a law 
requiring this to be done. And the power of Congress to pass such a law will 
hardly be questioned after reading the e.ause of the Constitution above cited, 
which declares that " Congress shall have power to raise and support armies." 
Here is no limitation. The troop* raised may be black or white, red or yellow, 



3 

and of any nationality; they may bo natives or foreigners, minora or adults, 
slaves or owners, apprentices or masters; and so far as the question of power is 
concerned, may be required to serve with or without pay. Nor is this a new 
policy. Colored troops were employed in this country during the revolutionary 
war and the war of 1812 — and have been, and are still, used by every nation 
on earth controlling colored citizens or subjects. If authorities were wanting 
to prove tliia, they might be piled up by the volume. 

But I will only mention in passing that Senator Johnsoa, once Attorney 
v ' General of the United States, a gentleman of great legal learning, and hereto- 
fore not a friend of this Administration — who has neglected no opportunity to 
reprimand it lor every supposed weakness, error, or oversight, said in a speech 
on the floor of the Senate at its last session — 

"Mr. President, a word or two more on this subject before I leave it I have had oe" 
casion more than once during the session to say (and that opinion I confidently entertain) 
that although by the laws of the States Africans are made property, they are also under 
the Constitution of the United States, with reference to the war power of the Govern- 
ment, to be considered as persons, and may be used as persons and brought into the field 
to maintain the authority of the Government to which as persons they owe allegiance. 
If this opinion be sound, if they are persons subject to our military control, if they are 
persons increasing our military power, they are for the same reasons persons under the 
military control of the rebels, and may increase their military power, and as such it is as 
much the right of the United States to take them from the rebels or to use them agaiDSt 
the rebela, as it is to take from and use against the rebels anything else that may be used 
by the rebels against the United States. — {Gong. Globe. 

FREEDOM OF SPEECH AND OF THE PRESS. 

4th. The President is accused of having interfered with the freedom of speech 
and of the press. 

There is a difference between freedom and licentiousness. The liberty of all 
to acquire property does not include the right to steal and rob. Freedom of loco- 
motion does not include the right to trespass on another's premises. Freedom 
to love, and to be loved, does not include the right to disturb your neighbor's 
domestic happiness. So " freedom of the press " does not include the right to 
print and circulate counterfeit bank notes ; nor freedom of speech, the right to 
slander your neighbor, or " to give aid and comfort " to the public enemy in 
time of war. And if any one, under the pretense of a right to freedom of speech 
or of the press, commits treason, he may aud ought to be restrained and pun- 
ished. To pretend the contrary, would indicate extreme mental obtuseneas or 
unpardonable and criminal wickedness. 

If the President has in any case suppressel a newspaper, or arrested any one 
for words spoken, in which the parties were not intentionally aDd ostentatiously 
encouraging the rebels to continue the war, and stimulating their northern sym- 
pathizers to obstruct and embarrass the Government in its efforts to suppress 
the rebellion, it has never come to my knowledge. But whether he has or has 
not erred in any given ease, in relation to the guilt or innocence of the party, is 
not the real question. All admit that his intentions are pure. The real ques- 
tion is one of constitutional right to prevent publishers of newspspers and stump 
speakers from committing treason — from giving aid and comfort to the public 
enemy. 

And the right to suppress a newspaper used in the interest of treason is as 
clear and indisputable as the right to take a dagger from the hand of the assas- 
sin, tools from the counterfeiter, or muskets from the hands of the rebels. The 
freedom of speech and of the press is not more explicitly guarantied by the 
Constitution than " the right to bear arms." 

Rut hdfrtro Ipav-ing tbo «"ilvj«<»t. T propo^o t^ r»T<iv«. from tbp <->fflnin1 reonn], 



4 

that the Copperheads themselves do not believe their own statements onthi s 
subject. 

imra-diately preceding the last presidential election, Jefferson Davis offered 
for the consideration of the Senate, a series of resolutions d<-claiatory of the 
principles" "which should control in ihe administration of the affairs of the Na- 
tional Government. When the second resolution of the series, which made a 
covert attack on the freedom of discussion, was under consideration, I offered 
the following as an amendment: 

"But the free discussion of the morality and expediency of slavery should never be 
interfered "with by the laws of any State or of the United States; and the freedom of 
speech and of the press, on this and every other subject of domestic and national policy, 
ehould be maintained inviolate in all the States." 

The question being taken on this amendment, by yeas and nays, resulted 
yeas 20, nays 36 — every Democratic Senator voting in the negative, including 
Biight, of Indiana, Gwinn and Latham, of California, Lane, of Oregon, Pugh, 
of Ohio, and Thompson, of New Jersey, all representing northern States, and 
all from border slave States, as well as those fiom the extreme South. — (Cong. 
Globe, 1st session, 36lh Congress, pages 1937-2321.) 

On the 8th of "April last, when Senator Powell, of Kentucky, was denouncing 
the President for interfering with what he styled "freedom of speech," I called 
his attention to the foregoing, reminding him that he and all his Democratic 
associates in the Senate voted against free speech. He replied that the scope of 
the amendment would have been to send persons down South to preach insur- 
rection to their slaves. "I would vote nay again on that lesolution. I voted 
right." — (Cong. Globe, 1st session, 38th CoDgiess, page 1487.) That is, ac- 
cording to his admission, " the freedom of speech and of the press" may be 
suppressed to prevent the insurrection of negroes and to preserve slavery ! Then 
may not its licentiousness be restrained to suppress the rebellion or white men, 
and to preserve the Government. 

CONFISCATION. 

5th. The Copperheads denounce the administration for the confiscation of the 
property of rebels and the liberation of their slaves. 

And yet the Constitution says : 
"The Congress shall have power to declare the punishment of treason." — (Art See. S.) 

And Congress, in pursuance of this provision provided by law, that unless 
these traitors should lay down their arms and return to their allegiance within 
a time to be fixed by the President, they should be punished by the confiscation 
of all their pioperty, including slaves. 

And why should they not be thus punished ? Heretofore the puuishment of 
treason was death. This is the usual penalty for this offence in every civilized 
country on earth. It you may hang for treason why may you not inflict a less 
punishment — the loss of property ? And if you may proscribe the lo9s of prop- 
erty as the punishment of treason, why may you not include slave property ? 
Is property in slaves any more sacred than property in cattle and lands? The 
power conferred by the Constitution is plenary. They may declare it to be the 
loss of lands, cattle, mules, horses, negroes, or franchises, such as the right to 
vote, hold office, or bear arms. .There is no limitation whatever except that the 
punishment deelared shall not be inflicted on the children of the traitor. You 
shall not deprive the child of the right to vote, hold office, bear arms, or to ac- 
cpuire property on account of the parents treason. 

EMANCIPATION PKOCLAMATION. 

6th. The President is denounced for issuing a proclamation liberating the 
slaves of rebels within the rebellious districts. 



And pray why not? We have just seen that * Congress may declare the 
punishment of treason :" that in pursuance of this provision of the Constitution 
Congress did declare that all traitors who should not lay down their arms by a 
time to be fixed by the President, should forfeit all their property of " every 
kind," including slave property. The President had taken a solemn oath to take 
care that this and all other "laws should be faithfully executed." Within the 
rebellious districts this confiscation act could not be enforced by the courts. But 
it was believed that if not impeded by the army and navy, it would to some ex- 
tent execute itself, that many thousands of the slaves if protected would aban- 
don their rebel masters. And to secure this result the President issued his 
proclamation, declaring that within the rebel districts, all persons, irrespective 
of their former status, should be considered and treated by the United States 
Government as freemen ; and requiring the officers of the army and navy to 
recognize their right to maintain their liberty. And if it is admitted to be right 
to punish rebels within our lines by the confiscation of their property, including 
slaves, pray can it be wrong to do the same thing beyond our lines so far as the 
effort can be made effective ? 

It is objected, however, that the proclamation if enforced would liberate the 
slaves of Union citizens as well as of rebels. And it is clear that the emancipa- 
tion of slaves of Union citizens who had not aided the rebellion could not be 
justified under the clause of the Constitution authorizing Congress to declare 
the punishment of treason ; and to that extent the proclamation would be void, 
unless justified by the public necessities ; and in that case the parties thus losing 
slaves would have the same right to just compensation as if other property had been 
taken for a similar purpose. And this would be a question for the courts to adju- 
dicate when the supremacy of the Constitution and laws shall have been restored. 

SUSPENSION OF THE WRIT OF HABEAS COKPUS. 

7th. It is avered that the President violated the Constitution by suspending 
the writ of habeas corpus. 

And yet the Constitution says: 

" The privilege of the writ of habeas corpus shall not be suspended, unless when in 
casesof rebellion or invasion the public safety may require it."— (Constitution, Art. 1st, 

This is what is styled by lawyers a negative pregnant ; and is equivalent to 
saying that " the pnviledge of the writ of habeas corpus may be suspended when 
in cases of rebellion or invasion the public safety may require it." And as a 
rebellion doe* exist, the priviledge of the writ may be properly suspended if the 
public safety requires it. There can be no question of the right to suspeud it : 
the only question that can arise is, " who can judge of the necessity ?" On this 
question a large majority of the best legal minds of the couutrv who have ex- 
pressed an opinion on this point, conclude that the President is the proper par- 
ty to excercise this judgment, as he is the Commander-in-Chief of the Armies 
and Navies of the Republic, and is at the same time the chief executive officer 
entrusted with the enforcement of the laws. Others, however, conclude that 
Congress should decide when the public safety requires its suspension. Hence 
to silence cavil Congress enacted a law formally directing its suspension during 
the continuance of the rebellion, whenever and wherever the President rniaht 
find it necessary to secure the enforcement of the laws. And this ought to & be 
an end of the controversy. 

ARBITRARY ARRESTS. 

8. The President is denounced for violating the Constitution by the " arbi- 
trary arrests " of suspected parties and offenders in cases not founded on "in- 



formation" or "indictment," — and for authorizing their imprisonment without 
a trial and conviction by a jury. 

These charges aro usually vindictive and malicious, and are in the first in- 
stance uttered for partizan effect, — and are doubtless repeated by the shallow 
minded and unreflecting under the belief that no arbitrary arrest is legal and 
constitutional. Nothing could be farther from the truth. Any citizen has a 
perfect inherent right to arrest a criminal without process and to restrain him 
until process can be secured. And any citizen has a right without process to 
arrest a party to prevent the commission of crime, and to restrain him until the 
danger has passed. This is done every day and every night in the great cities. 
Men are discovered apparently on the point of committing crime, as an assault 
and battery, a burglary, a robbery, or* a murder, and are seized and incarcer- 
ated or otherwise restrained of their liberty to prevent the commission of the 
offence. In all such cases, even in times of profound peace, it is idle to insist 
that the arrest must be preceded by a formal "information" or "indictment," 
or that a "jury trial" must precede an imprisonment. There would be no 
time for this — the delay would be fatal : instant action is necessary to prevent 
the crime. Such arrests are therefore not only right — but a refusal to make 
them would be a crime against society. 

The President, when convinced that persons were about to commit treason — 
the gravest crime known to the laws, has caused their arrest and restraint as in 
the case of Vallandigham, of Ohio, and Jones, of Iowa, until the danger had 
passed, when they have been set at liberty. 

I am not here undertaking to justify any specific case of arrest made without 
process. Some of them may have been unnecessary, and may have worked 
great personal hardship. The President may not have been correctly informed, 
and may have erred in any given case. He could not be everywhere in per- 
son and must necessarily rely on others for information. Ail I claim here is 
that he intended to do right, and that in principle he had a perfect right to 
make arrests without process to prevent the commission of crime. If not, why 
not? We have seen that a private citizen may do this --yea, more, that it is 
his duty to do so — and a wrong akin to a crime to refuse when he has the power. 
May not the President do what a private citizen may do to prevent the com- 
mission of offenses ? 

In the case of an arbitrary arrest by a private citizen without process, if the 
restraint were to be protracted, the party could sue out a writ of habeas corpus, 
and secure his discharge by the judge of any court of competent jurisdiction. 
But if made by the President in times of "invasion or insurrection" he could 
if he deemed that the public safety required it, as we have seen suspend the 
privilege of this writ and retain the person in custody. 

If any doubt might otherwise exist on this point it ought to be settled in the 
minds of those who reverence the courts by their decisions in the case? of the 
arrest and restraint of Vallandigham by General Burnside. While still in cus- 
tody, application was made to Judge Leavitt, of the United States Court for the 
Southern District of Ohio, for a writ of habeas corjrus. Vallandigham was 
fully heard in an able and exhaustive argument, delivered by his personal and 
political friend, ex-Attorney General of Ohio, George E. Pugb, who for six years 
was a representative of the Ohio Democracy in the United States Senate, and 
Judge Leavitt refused to issue the writ. This was, in effect, deciding that the 
arrest was constitutional ; tor no other question could legitimately arise than 
the power of the President to make the arrest without process, and the con- 
stitutionality of the restraint. In applying for this writ the party must allege 
that he has been illegally arrested and restrained of his libarty, setting forth the 
pretended grounds of restraint, if known. When brought before the court or 
nd^e, according to the principle* of the common low, the quoat.ion of grnflt or 



innocence is neyer tried. The legality of the restraint is the only question that 
can be put in issue. But the judge or court would not, of course, issue the 
writ and bring the party before the court for a hearing unless, according to his 
own showing, his arrest was illegal. As Judge Leavitt refused the writ, it is, 
in effect, an affirmation of the legality of the restraint. Nor can this decision 
be justly attributed to political bias. For this judge was appointed by Presi- 
dent Jackson, many years before the existence of the Republican party, and 
he has never been accused or suspected during his long official career of the 
slighest divergence from the line of judicial rectitude. 

An appeal was, however, taken in the Vallandigham case to the Supreme 
i Court of the United States, in an application for a writ of certiorari, or an or- 
| der on the Judge Advocate General to send the case to the Supreme Court for 
re-hearing. This application was refused after a full hearing in open court. 
In other words, the decision of Judge Leavitt was sustained by the Supreme 
Court; and the question practically settled by the court of the last resort, that 
during a rebellion or invasion the President may legally arrest suspected per- 
sons without process, and when in his opinion the public safety requires it, may 
suspend the right to the use of the writ of habeas corpus, and retain them in 
custody until the danger has passed. This right is therefore affimed by every 
department of the Government, by Congress, by the President, and by the 
Courts. And finally the Copperhead National Convention at Chicago has stul- 
tified all that Copperhead senators, and members, and newspapers, and stump 
speakers, have said in denunciation of ""arbitrary arrests," by the nomination 
of Major General McClellan for the Presidency, after his " arbitrary arrest " of 
the members of the Maryland legislature. • 

TRIAL OF ACGTJSED. 

9th. But, it is demanded, " why are not these parties put on trial ?" " Ad- 
mitting the necessity and legality of the arrests and restraint, surely they have a 
right to trial by a jury of their countrymen, and to be confronted with the 
witnesses who testify against them." 

This is more spacious than sound, fn the class of arrests made to prevent 
the commission of crime, how would it be possible to put the parties on trial? 
How could you try a party for an offence not committed ? The utmost that 
! could be demanded would be the release of the suspected parties, on giving 
A bond and satisfactory security to keep the peace. And this has been done in 
every case where, in the opinion of the President, it was compatable with the 
public safety. But putting a party under bonds is but another mode of restraint 
substituted for imprisonment. It is the same in principle. The right to do the 
former involves the right to do the latter. 

In cases of arrest, after the commission of the crime, what authority has the 
President to try, condemn, and punish the offenders ? The Constitution says : 

"No person shall be held to answer for a capital or otherwise infamous crime, unless 
on a presentment or indictment of a grand jury, except in cases arising in the land or 
navaf forces, or in the militia, when in actual service in time of war or public danger." — 
(Article 5, Amendments to the Constitution.) 

Hence, the President and all his Cabinet, the Congress, and all the Courts 
combined, have not the constitutional power to put a man on trial for an alleged 
crime, except in the nature of a preliminary examination for the purpose of 
eliciting facts to justify restraint of the suspected party. This can be done only 
by a grand jury. The President has the constitutional right to arrest and re- 
^tr^in^rmg the continuance of the rebellion any offender, or person about to 
commit* a ^ime, so long as the public safety may require it. To deny this 
right isKo deny the validity of the Constitution. But he ha* no right to try in 



8 

the judicial sense, or to convict, condemn, or punish any one ; this is the pro- 
vince of the jury, the court, and the sheriff. Nor has the President put on 
trial, iu the judicial sense, or punished any one not in the land or naval forces. 
When restrained of their liberty by placing them under guard, or within the 
walls of fortifications, the confinement was not in the nature of punishment, nor 
considered or intended to be considered infamous. They would be liable after- 
ward as much as before such restraint to indictment and punishment by the 
civil authorities. 

It follows, therefore, that the President has proceeded as far as he has the 
right under the Constitution, and not one hairs-breadth farther. The " Copper- 
heads condemn him as a violator of the Constitution for doing what the Con- 
stitution clearly authorizes ; and condemn him for not doing what the Consti- 
tution as clearly prohibits." 

But it is needless to pursue this subject. All these cavils and charges of un- 
constitutionality are as empty as the wind. They are without a decent pretext. 
They all vanish under a candid, impartial analysis. No one can carefully ex- 
amine them and avoid the conclusion that the measures of the existing Admin- 
istration are in strict accordance with the Constitution and laws. 

I therefore conclude with the declaration that, in my opinion, a more pure- 
minded, disinterested, self-sacrificing, generous, humane, patriotic, laborious, 
and God-fearing man never administered the affairs of a great nation than 
Abraham Lincoln. And that no living man, whose name has been mentioned 
in that connection, could be more safely trusted in the presidential office for 
the next four years. And that no ene more richly deserves the second office 
in the gilt of the American people than Andrew Johnson, of Tennessee. Aud 
that if all who believe as I do perform their duty resolutely and faithfully, 
their triumphant election is as certain as the succession of day and night. 

PRESIDENTIAL CAMPAIGN OF 1884. 
UNION CONGRESSIONAL COMMITTEE. 

Hon. E. B. WASHBURNE, of Illinois 
" R. B. VAN VALKENBURG, N. Y. 
" J. A. GARFIELD, of Ohio. 
" J. G.BLAINE, of MaiDe. 

House of Representatives. 
E. D. MORGAN, Chairman. J A3. HARLAN, Treasurer. D. N. COOLEY, Sec'y. 

Committee Rooms, Washington, D. C, Sep. 2, 1864. 
Dear Sir: The Union Congressional Committee, in addition to the documenta 
already published, propose to issue immediately the following documents for dis- 
tribution among the people: 

1. McClellan's Military Career Reviewed and Exposed. 

2. George H. Pendleton, bis Disloyal Record and Antecedents. 

8. The Chicago Copperhead Convention, the men who composed and controlled it. 
4. Base surrender of the Copperheads to the Rebels in arms. 
6. The Military and Naval Situation, and the Glorious Achievements of our Sol- 
diers and Sailors. 

6. A Few Plain Words with the Private Soldier. 

7. What Lincoln's Administration has done. 

8. The History of McClellan's "Arbitrary Arrest" of the Maryland Legislature, 

9. Can the Country Pay the Expenses of the War? 

10. Doctrines of the Copperheads North identical with those of the Rebels South. 

11. The Constitution Upheld and Maintained. 

12. Rebel Terms of Peace. 

18. Peace to be Enduring, must be Conquered. 

14. A History of Cruelties and Atrocities of the Rebellion. «^_ 

15. Evidences of a Copperhead Conspiracy in the Northwest. }p I 

Print-orl by I* Tow«rs for the UnioTi CJnnHrp<won(»] rVrmwiit.tp» 



Hon. E D. MORGAN, of New York. 
" JAS. HARLAN, of Iowa. 
" L. M. MORRILL, of Maine. 
(Senate.) 














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